SOLICITER GENERAL LEE, THE ABORTION ISSUE

On Aug. 4, you published an editorial sharply attacking Solicitor General Rex E. Lee, who a week earlier had filed with the Supreme Court an amicus brief in two abortion cases.

he brief supports the position that lower courts erred when they invalidated regulations adopted by Missouri and Akron, Ohio, which require second trimester abortions to be performed in hospitals, require the disclosure of all relevant facts to the pregnant woman, including facts of fetal development and medical risks of abortion, mandate a 24-hour waiting period before performing any abortion, etc.

You did not just criticize the positions taken in the brief. You also accused Lee of ''venting his deep personal quarrel with most of the Court's abortion decisions while distorting the function of his respected office'' and of ''trashing the (Justice) department's reputation as a source of principled counsel to the Court'' by filing a brief for the United States in cases in which there is ''no Federal interest.''

These are serious charges. One of the proud traditions of the Solicitor General's office is its reputation for integrity, independence and professional excellence, and during his nearly 20 years as a lawyer, Rex Lee has earned precisely such a reputation for himself. The reputation of the man and the office have been impugned.

But your accusations are totally unfounded. Usually the Solicitor General files briefs in Supreme Court cases in which the United States is a party or will be directly affected by the decision. One issue the Court expressly agreed to hear in the pending abortion cases concerns the proper standard of judicial review of abortion regulations. The standard established by the Court will apply to Federal as well as state abortion regulations.

As mentioned on the first page of Lee's brief, the Government has a direct interest in the Court's decision on this issue because ''Congress has in the past enacted legislation impacting upon the abortion decision ... and may again do so in the future.'' In fact, Congress is at present considering several proposed abortion regulations, which could be enacted before the end of the year. Thus, as Lee indicated, the Government ''does have a substantial interest in preserving the proper sphere of legislative action.''

Equally important is the well-established prerogative of the Solicitor General to file an amicus curiae brief in cases of exceptional national importance.

An error has occurred. Please try again later.

You are already subscribed to this email.

Prior Solicitors General have filed such briefs in landmark cases in which the U.S. was neither a party nor directly involved, such as the school desegregation cases (Brown v. Board of Education, etc.), the voting rights case (Baker v. Carr) and the reverse discrimination case (Bakke v. Board of Regents of University of California). You did not accuse any Solicitor General of ''distorting the function of his respected office'' in those cases.

Since you are unlikely to deny that abortion is an issue of great national importance, your uncharacteristically intemperate, indeed ad hominem, argument must be traceable to the position taken by the Government rather than the decision to file an amicus brief.

The argument and position presented in Lee's brief actually are very moderate. The theme of the brief is the need for judicial restraint and deference to policy decisions of the elected representatives of the people when legislative and judicial authority overlap. He does not ask the Court to abandon its constitutional responsibility of judicial review; he merely suggests that it should give more deference to legislative choices concerning abortion regulations.

Your accusations apparently stem from your intense disagreement with the Solicitor General regarding the policy position he has taken. Of course, you should feel free to criticize Lee's policies and positions. But it is irresponsible for any newspaper - especially one as influential as The Times - to make unfounded accusations of impropriety in filing a brief just because the position taken in it is one with which the newspaper disagrees.

You owe Solicitor General Lee an apology. (Dean)CARL S. HAWKINS (Prof.) ROBERT E. RIGGS, (Assoc. Prof.) LYNN D. WARDLE (Assoc. Prof.)W. COLE DURHAM JR. Brigham Young University Law School (Prof.) CHRISTOPHER L. BLAKESLEY McGeorge School of Law University of the Pacific Provo, Utah, Aug. 6, 1982

We are continually improving the quality of our text archives. Please send feedback, error reports,
and suggestions to archive_feedback@nytimes.com.

A version of this letter appears in print on August 13, 1982, on Page A00024 of the National edition with the headline: SOLICITER GENERAL LEE, THE ABORTION ISSUE. Today's Paper|Subscribe